Public Policy Advocacy Highlights for February 2022

Public Policy Advocacy Highlights for February 2022

[PRELIMINARY NOTE: For more than a decade, the First Tuesday Lunch Group, made up of legal practitioners who are Democrats, Republicans, independents and non-partisans from across the United States, has met monthly to discuss current legal issues in tax-exempt organization, constitutional, and campaign finance law and developments in public advocacy. Participants represent diverse organizations, interests and views spanning the political spectrum – non-partisan, left, right, and center, sometimes in adversarial positions in the legal arena. Yet participants are united in our commitment to the rule of law. These non-partisan discussions help candidates, news media, government officials, and other Americans navigate difficult and complex federal laws.

There is no set FTLG agenda each month, but a draft of possible topics for discussion, based on highlights of the prior month, is circulated; the actual FTLG discussions generally include only a few of these topics and often several other topics. This post includes Barnaby Zall’s suggestions for possible topics and highlights. This draft is intended for active FTLG participants, and thus includes abbreviations and references to government agencies or individuals, legal doctrines and terms, and other shorthand phrases or terms.]

FTLG business:

  • Sign-on letter in support of Dara Lindenbaum nomination to FEC. Andrew Herman is managing this; any updates? Deadline?
  • Sub-groups to contact DCRA and OTR: The two groups will meet in March. Let Susan know if you are interested in joining.

SCOTUS:

  • Nominee Judge Ketanji Brown Jackson on First Amendment and Exempt Orgs: President Biden has announced his nominee for Justice Breyer’s soon-to-be vacant Supreme Court seat: D.C. Circuit Judge Ketanji Brown Jackson. IFS has a summary of Jackson’s First Amendment decisions, one of which is well-known to FTLG participants: Z Street v. Koskinen, 44 F.Supp. 3d 48 (D.D.C. 2014). Z Street held that an applicant for 501(c)(3) status could challenge the constitutionality of the Service’s “Israel Special Policy” which subjected applicant organizations with ties to Israel to higher scrutiny. Judge Jackson’s decision rejected the Service’s defenses of the AIA and the “tax exception” to the DJA because the challenge was not to the applicant’s eligibility for exemption but to the constitutionality of the process used to add the additional “Israel” factor to other requirements for status.
  • Supreme Court to Review Colorado Case Anti-Discrimination that Concerns First Amendment: 303 Creative LLC v. Elenis, No. 21-476, is usually mentioned as an anti-discrimination case involving whether a creative artist can be forced to create an original work which would violate her religious and speech beliefs. Prof. Jonathan Turley writes in The Hill that it also can be viewed as a test of whether an anti-discrimination law can violate the First Amendment. That is because the Supreme Court, in granting cert, expressly limited the Question Presented to the First Amendment’s Free Speech Clause: “Petition GRANTED limited to the following question: Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”

FARA:

  • Thanks to DoJ for FARA ANPRM: Politico summary of the nearly thirty comments to DoJ responding to DoJ’s request for suggestions on improving the ancient Foreign Agents Registration Act, which is being increasingly and more rigorously enforced recently. “The details of the comments submitted offer varied perspectives on the statute and offer an array of recommendations, but pretty much every commenter appeared to agree on at least one thing: FARA is in serious need of fixes.” Coalition letter: “The Act’s exemptions are also vague and may privilege commercial conduct over similar types of non-commercial activities. For example, commercial actors are exempt from FARA for soliciting or disbursing funds for non-political activity in the United States, while the Justice Department provides no guidance exempting charities and other non-commercial actors for the same conduct.” The National Wildlife Federation’s comment “continue[d] to protest DOJ’s ordering the conservation group to register in 2020 because of a [2016] grant it received from a Norwegian government agency [to support efforts to limit deforestation], calling it ‘an example of what we believe to be the FARA Unit’s overly expansive interpretation of the reach of FARA, with the result that it is applied to cases where Congress never intended it to apply.’”

On August 15, 2021, Taliban fighters seized the presidential palace in Kabul, Afghanistan, marking the effective collapse of the U.S.-backed government. See Afghan Conflict: Kabul Falls to Taliban as President Flees, BBC (Aug. 16, 2021), https://www.bbc.com/news/world-asia-58223231. The speed of the collapse left thousands of people trapped and desperate to flee the country, including many Afghan citizens fearful of what would happen to them under Taliban rule. In their hour of desperation, many of them reached out to whatever friends they had in the United States, seeking help getting visas approved and getting on flights out of the country. Many of their friends answered the call without stopping to ask for permission: pleading with their congressman or other government officials, going on television, giving print interviews, doing whatever they could to get their government to help their friends. It was in many ways, a reflection of the best of the American can-do spirit in the midst of a terrible tragedy and policy failure.

It was also likely illegal, at least under the plain text of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq. (“FARA”). And that is the problem.

By its plain terms, FARA is an exceptionally broad and vague law that chills free speech and free association by American citizens and sets snares for the unwary, even capturing some of the most sophisticated of Washington players. The Department of Justice should use the opportunity presented by this ANPRM to draft and adopt regulations that set bright line standards and limit the scope of FARA-regulated activity to conform to the First Amendment.

  • FARA Advisory Opinions Limit Academic Exemption: While DoJ considers its ANPRM on improvements to FARA, it has issued several new FARA Advisory Opinions applying registration requirements to nonprofit educational organizations (but also not necessarily applying to individual academics). Covington has a quick cautionary note. 

FEC/Campaign Finance:

  • Were These Pre-Iowa Caucuses Charitable Contributions Coordination? The Federal Election Commission, in MUR 7425 (Donald J. Trump Foundation), has deadlocked and closed the file in a CLC complaint about alleged coordination between the Trump Foundation and Trump presidential campaign. Shortly before the Iowa caucuses in 2016, Candidate Trump held a Iowa fundraiser ostensibly for veterans’ organizations, half the receipts from which were disbursed by the Foundation to charities in Iowa at the direction of the campaign, and some checks were presented at Trump campaign events. The question apparently turned on the “Charitable Exclusion” under 52 U.S.C. § 30125(e)(4)(A), which permits charitable solicitations not for election-related purposes. Democratic Commissioners Shana Broussard and Ellen Weintraub accused their Republican colleagues of “eroding the public’s trust in the integrity of the federal campaign finance process” by blocking the enforcement of federal law.
  • Pro Tip 1: Plead the Elements FIRST. Self-Inflicted Wounds Doom 10th Cir. Appeal of Challenge to NM Disclosure Requirement: The Tenth Circuit said that “Cowboys for Trump” alleged that it had not and would not make any independent expenditures, and thus had no injury in fact sufficient to support standing to challenge New Mexico’s campaign finance disclosure rules applicable to IEs. Chief Judge Tymkovich’s opinion noted that, while allegations and documentation showing actual injury were included in a reply brief (including the State’s imposition of a $7,800 fine for failure to report), that wasn’t sufficient to rebut a Rule 12(c) request for judgment on the pleadings, since there was no explanation of why the information wasn’t in the original complaint and leave had been granted to file an amended complaint. Even invoking AFPF/TMLC v. Bonta for donor privacy was insufficient in light of the self-abnegation of IEs.
  • Pro Tip 2: Don’t Use “Campaign Consulting Fees” as a category to Report DC dinners. Cong. David Schweikert agrees to $125k FEC fine for misreporting. Schweikert “did not want a whole bunch of dinners in DC showing up on his reports,” so he got his CoS to pay those personally, and then charge the campaign as “consulting fees.” 
  • 3 indicted over alleged ‘straw donor’ scheme that funneled money to pro-Susan Collins group: Bangor Daily News reports that a former defense company CEO was indicted for “allegedly creating a shell company to donate $150,000 to the 1820 PAC, a super PAC created to support Collins. He was also under investigation for paying employees and family members to donate to her campaign in violation of federal campaign finance laws.”

IRS: 

“Dark Money”

  • There He Goes Again; Whitehouse complains about judicial nomination lobbying: Lots of recent coverage of Sen. Sheldon Whitehouse’s effort to expose dark money “scheme” in judicial nominations; The Guardian:   “Scheme to Highlight RightWing [sic] Influence on Supreme Court.” Sen. Whitehouse op-ed in Post complaining that his bête noir Leonard Leo, co-Chair of the Federalist Society and the rest of the Right is advertising about liberals using “dark money” to lobby on judicial nominations. “So, for the dark-money enterprise to hurl allegations of dark-money mischief is pretty rich. Yes, progressive groups receive anonymous donations, because Democrats have to play by the rules Republicans set, or else we unilaterally disarm. We came late to the game, but now we’re there. The difference is this: Democrats want to clean up this god-awful dark-money mess; Republicans created it and protect it.” Which begs this important question: is it “dark money” or “dark-money?” The Whitehouse Senate website uses both forms, sometimes in the same article or statement.
  • Cage Match Between FTLG Participants (certainly not the first nor the last): Meanwhile, Axios reports that the Judicial Crisis Network, a Sen. Whitehouse target (though his Post op-ed says: “The group running the ad, the Judicial Crisis Network, isn’t even real”), goes after Arabella Advisors: “Partisans often seek to isolate and elevate high-dollar donors that can be portrayed as hidden masterminds behind their opponents’ success.” Axios twice uses the form “dark money” (including quote marks). Two First Tuesday Lunch Group participants are points of their clients’ spears: Arabella is saber-rattling with its lawyers, led by Ezra Reese; JCN’s lawyers, led by Jason Torchinsky, returned fire. The lawyers’ participation itself became part of the conversation, which centered on complaints about defamation. Just FYI: Ezra used 14 footnotes, Jason only two.
  • After “Dark Money,” “Dark Patterns:” In Brookings’ TechTank, Georgetown U. staff attorney Daniel Jellins writes about “dark patterns:” “innovative, but tricky and deceptive design techniques in emails and on web pages—to extract more donations from their supporters,” and suggests that “government should curtail dark patterns where they apply to fundraising speech.”

Social Media:

  • Facebook Reevaluating Ban on Political Ads for 2022: Bloomberg reports that “Facebook owner Meta Platforms Inc. is rethinking its policy of banning new political advertisements in the final days before an election, part of its preparation for the 2022 midterms”.
  • Can Science Help Congress Figure Out How to Fix Social Media Algorithms? A bipartisan bill introduced to ask the Nat’l Science Foundation and Nat’l Academy of Science to help. It’s for the children. And speaking of getting some help, “a small but powerful group of former Democratic congressional aides and Obama administration appointees created an organization to help House and Senate Democrats exercise their oversight authority over the executive branch.”

DC and the States:

  • UPMIFA Requires What?! Students weaponize UPMIFA to argue that investments in fossil fuel companies is not “prudent,” and so is illegal in some states. Ted Hamilton, co-founder of the Climate Defense Project, legal advisor to the effort, told the Post: “We are trying to get more of a legal consensus around this idea of fiduciary duties, … A public charity can’t only be thinking about profit, … They have other obligations. We’re trying to make that a concrete legal fact.”
  • D.C. Pay2Play Law Back on Track: Lyndsay O’Reilly of Venable notes that postponed 2020 law will now go into effect on Nov. 9, 2022, affecting businesses that seek or hold D.C. Government contracts valued at $250,000 or more after that date. DC Office of Contracting and Procurement is responsible for issuing implementation rules within six months from the effective date. (What could possibly go wrong?)

Litigation:

  • Are Door-to-Door Political Canvassers “Employees” If Door-to-Door Salespeople Are Not? Ninth Circuit considers an IFS case challenging California labor law exempting for-profit salespeople but not direct democracy advocates; District Court said “there’s no way they’re going to get that exemption.” Do church challenges to pandemic rules under express First Amendment rights show the way? IFS backgrounder.
  • When is Chill Not Enough for Standing? A U.S. District Court opinion found that IFS did not have standing to challenge Washington’s ambiguously-worded threat to enforce campaign finance rules against pro bono legal representation because “There is no credible threat of enforcement against IFS based on its proposed pro bono representation of Mr. Eyman on the appeal because the PDC’s binding Declaratory Order unequivocally states that such action will not trigger FCPA registration or disclosure requirements.” IFS is appealing to the Ninth Circuit.
  • Good Guidelines for Footnotes in Briefs: Prof. Eugene Volokh, who, inter alia, runs a very active amicus brief clinic, had a post commenting on modern footnoting practices. Footnotes are still used copiously in articles, but far less so in modern appellate briefs (of course, individual judges’ preferences may differ); some say that the change was sparked by Justice Scalia’s “I am not a bobblehead when I read”, (though, of course, he was) while others note that having citations in the text allows a reviewer to quickly determine the strength of the assertion.

Misc./Grab Bag:

  • Left and Right Agree on Amending Electoral Count Act? Retired Fourth Circuit Judge Michael Luttig, a perennial short-lister for Supreme Court seat under conservative Administrations whose clerks almost all went on to Supreme Court clerkships, pens NYT editorial (paywall) urging conservatives to support amending ECA. Hasen notes it and Sargent applauds.
  • How American History Really Happens: And speaking of Judge Luttig, we don’t get into the Jan. 6 controversy, but this Politico article about Luttig unwittingly guiding Vice President Pence’s rejections of demands he intervene in the certification of the 2020 election tells so much more about the “backstories” behind American history. The main participants often don’t even know they’re doing it; they just fumble around doing what they think is right. Excerpt: “He called back in 10 minutes, and I said, ‘Alright, I opened a Twitter account a couple of weeks ago, but I don’t know how to use it.’ He said, ‘Perfect.’ And I said, ‘I told you: I don’t know how to use it.’ He said, ‘Figure it out and get this done.’ So I called my tech son who works for Peter Thiel, and I said, ‘How do I tweet something more than 180 characters long?’”
  • American Bridge Goes “Hyperlocal:” And speaking of fragmentation in local politics, for some people that’s a business model. David Brock’s “oppo” SuperPAC American Bridge called itself “the largest research, video tracking, and rapid response organization in Democratic politics. We find what Republicans are hiding and make sure voters hear about it.” After spending a reported $50 million in the 2020 Presidential race, it is expanding into local races.
  • “Milton’s Curse”: Danish free speech advocate Jacob Mchangama has a new book on the history of free speech. Mchangama looks, inter alia, at “Milton’s Curse,” a “selective and unprincipled defense of free speech—which I term “Milton´s Curse”—is nothing new, but has in fact been a recurrent theme throughout the history of free speech.” In other words, as the late Nat Hentoff wrote about it thirty years ago: “free speech for me but not for thee.” Prof. Eugene Volokh has a quick blog post from Mchangama summarizing his work.
  • Free Speech “Under Attack:” CBS News video: “The Price of Free Speech and Censorship.” “When someone says something we disagree with, should we shut them up? In 1927, Supreme Court Justice Louis Brandeis had an answer: ‘The remedy to be applied is more speech, not enforced silence.’ Well, in that case, the internet should have solved everything, notes correspondent David Pogue – it’s nothing but more speech. And yet lately, the news is full of stories about people trying to limit other people’s expression.”
  • Are Philanthropies “Totally Disconnected from Pandemic Reality”? Nearly 86% of funds contributed by donors on the Chronicle of Philanthropy’s top 50 list went to traditional “eds and meds,” rather than to racial justice, sparking complaints from some. ““White billionaires get these ideas about what they think is the right solution, and then they set up initiatives that they think will work, so then they’re spending other people’s money, too. That’s one of the big problems that we want to see changed,” Lori Villarosa, executive director of Philanthropic Initiative for Racial Equity, explained to the Chronicle. And Elon Musk, one of the most wealthy persons on the planet, gave away $5.7 billion last year, but isn’t being transparent about it, which upsets some people, but not others.
  • Research Suggests Moderates Perform Better in Presidential General Elections: In “Candidate Ideology and Vote Choice in the 2020 US Presidential Election,” PoliSci Profs. David Broockman (Berkeley) and Joshua Kalla (Yale) look to recent Democratic primary battles to examine whether, even in these highly-polarized times, moderate candidates actually do better than extreme candidates in general presidential elections. They think that “moderate candidates are electorally advantaged.”
  • Can Only Self-Funders be Moderates in Primaries? In the same vein, Josh Kraasner reports in National Journal (Paywall) thatmajor donors’ willingness to sit out Republican primaries means that only self-funding Republican primary candidates can be moderates; candidates who need to appeal to small money donors seem less moderate. (If blocked by the paywall, you can read Prof. Rick Pildes’s ELB summary.) Pildes also notes a Sarah Isgur (former DoJ spokesperson) paywalled piece asking whether Beto O’Rourke was affected by the same phenomenon.
  • “Blue Texas” or not? Evolving views of Hispanic voters in the Lone Star state. Liberal publication Texas Monthly story (paywall) asserts “Latinas Are Pushing a Political Revolution in South Texas—to the Right.” Key quote: “ San Antonio Express-News columnist Gilbert Garcia questions claim of the rise of “Blue Texas:” “But when?” (paywall). 
  • Startup Helping EOs Find Volunteers Gets $12M Funding Round: Entrepreneur reports on Vee, a startup “on a mission to help nonprofits everywhere find qualified volunteers” by “offering a [CRM-based] marketplace of volunteer opportunities around the world.”